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NOTE OR BANK NOTE A: This Promissory Note. DEED TO SECURE DEBT: Deed To Secure
Debt, Security Agreement, and Fixture Filing dated as of the Execution Date
granted by Borrower to the holders of the Note and Other Notes. LOAN DOCUMENTS:
This Note, the Other Notes, the Deed To Secure Debt, the Leasing Reserve
Holdback Agreement, the Assignment of Interest Rate Cap Agreement and any other
documents related to this Note, the Other Notes and/or the Deed To Secure Debt
and all renewals, amendments, modifications, restatements and extensions of
these documents. GUARANTY: Guaranty dated as of the Execution Date and executed
by Liable Parties. INDEMNITY AGREEMENT: Unsecured Indemnity Agreement dated as
of the Execution Date and executed by Borrower in favor of the holders of the
Note and Other Notes. The Indemnity Agreement and Guaranty are not Loan
Documents and shall survive repayment of the Loan or other termination of the
Loan Documents. LOAN: A first mortgage loan in an aggregate amount of
$90,000,000.00 consisting of (i) a $74,000,000.00 Loan (" Metropolitan Loan A")
from Metropolitan Life Insurance Company to Borrower, (ii) a $6,000,000.00 Loan
from MetLife Bank, N.A. to Borrower ("Bank Loan A"; Metropolitan Loan A and Bank
Loan A are sometimes collectively referred to herein as "Loan A"), (iii) a
$9,000,000.00 Loan ("Metropolitan Loan B") from Metropolitan Life Insurance
Company to Borrower, and (iv) a $1,000,000.00 Loan from MetLife Bank, N.A. to
Borrower ("Bank Loan B"; Metropolitan Loan B and Bank Loan B are sometimes
collectively referred to herein as "Loan B"). OTHER NOTES: (i) the promissory
note dated as of the Execution Date made by Borrower to the order of
Metropolitan Life Insurance Company in the principal amount of $74,000,000.00
("Metropolitan Note A"; the Metropolitan Note A and the Bank Note A are
sometimes collectively referred to herein as "Note A"), (ii) the promissory note
dated as of the Execution Date made by Borrower to the order of Metropolitan
Life Insurance Company in the principal amount of $9,000,000.00 (" Metropolitan
Note B"), and (iii) the promissory note dated as of the Execution Date made by
Borrower to the order of MetLife Bank, N.A. in the principal amount of
$1,000,000.00 ("Bank Note B"; the Metropolitan Note B and the Bank Note B are
sometimes collectively referred to herein as "Note B"). LEASING RESERVE HOLDBACK
AGREEMENT: Leasing Reserve Holdback Agreement of even date between Borrower and
the holders of the Note and Other Notes which provides for certain future
disbursements of the proceeds of Note A.
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FOR VALUE RECEIVED, Borrower promises to pay to the order of Holder, at Holder's
Address or such other place as Holder may from time to time designate, the
amount of $6,000,000.00 with interest payable in the manner described below, in
money of the United States of America that at the time of payment shall be legal
tender for payment of all obligations.
Capitalized terms which are not defined in this Note shall have the meanings set
forth in the Deed To Secure Debt.
1. PAYMENT OF PRINCIPAL AND INTEREST. Principal and interest under this Note
shall be payable as follows:
(a) INTEREST RATE. The initial Interest Rate shall be a rate per annum
equal to the sum of (i) 1.60% plus (ii) the one month "LIBOR Rate" (as
hereinafter defined) as of approximately 11:00 A.M. London time on the second
Business Day prior to the date of this Note. The Interest Rate will be reset by
Holder, effective as of the first day of the first month following the month in
which this Note is dated and also as of the first day of each successive month
thereafter during the term of the Loan (the "Rate Reset Dates"). The Interest
Rate will be reset as aforesaid to be a rate per annum equal to the sum of (i)
1.60% plus (ii) the one month LIBOR Rate as of approximately 11:00 A.M. London
time on the second Business Day prior to each of the Rate Reset Dates. A
"Business Day" is a day that both (x) commercial banks in London are open for
international business (including dealings in U.S. dollar deposits) and (y)
Holder is open for business in New York City. The term "LIBOR Rate" as used
herein shall mean the one month London interbank offered rate for deposits in
U.S. dollars rounded upwards if necessary to the nearest one one-hundredth
(1/100th) of one percent appearing on the display designated as page 3750 on the
Dow Jones Telerate Service, or such other page as may replace page 3750 on that
service (or such other service as may be nominated as the information vendor by
the British Bankers' Association for the purpose of displaying British Bankers'
Association interest settlement rates for U.S. dollar deposits as the composite
offered rate for London interbank deposits). If the aforementioned sources of
the LIBOR Rate are no longer available, then the term "LIBOR Rate" shall mean
the one month London interbank offered rate for deposits in U.S. dollars rounded
upwards if necessary to the nearest one one-hundredth (1/100th) of one percent
as shown on the appropriate Bloomberg Financial Markets Services Screen or any
successor index on such service under the heading "USD".
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(b) PAYMENT OF PRINCIPAL AND INTEREST. Principal and interest under
this Note shall be payable as follows:
(i) Interest on the funded portion of this Note shall accrue
from the Advance Date at the Interest Rate;
(ii) Interest only from the Advance Date through and including
December 31, 2003, shall be paid on the Advance Date. Commencing on
February 1, 2004, and on the first day of each calendar month
thereafter, to and including the first day of the calendar month
immediately preceding the Maturity Date, Borrower shall pay monthly
installments of interest in arrears. The amount of the monthly
installments of interest shall be calculated and set by Holder on the
Advance Date based upon the initial Interest Rate and shall be
recalculated and set on each Rate Reset Date based upon the Interest
Rate in effect on such Rate Reset Date. Holder shall notify Borrower in
writing of the amount of each monthly installment of interest at least
five (5) business days prior to the date such payment is due.
(iii) In addition to monthly interest payments, commencing on
February 1, 2004 and continuing on the first day of each calendar month
thereafter, to and including the first day of the calendar month
immediately preceding the Maturity Date, Borrower shall pay monthly
installments of principal in the respective amounts set forth on
Exhibit A to this Note.
(c) MATURITY DATE. On the Maturity Date, a final payment in the
aggregate amount of the unpaid principal sum evidenced by this Note, all accrued
and unpaid interest, and all other sums evidenced by this Note or secured by the
Deed To Secure Debt and/or any other Loan Documents as well as any future
advances under the Deed To Secure Debt that may be made to or on behalf of
Borrower by Holder following the Advance Date (collectively, the "AGGREGATE
Indebtedness"), shall become immediately payable in full.
Borrower acknowledges and agrees that a substantial portion of the original
amount of this Note shall be outstanding and due on the Maturity Date.
Interest shall be calculated on the basis of the actual number of days elapsed
over a three hundred sixty (360) day year.
2 APPLICATION OF PAYMENTS. At the election of Holder, and to the extent
permitted by law, all payments shall be applied in the order selected by Holder
to any expenses, prepayment fees, late charges, escrow deposits and other sums
due and payable under the Loan Documents, and to unpaid interest at the Interest
Rate or at the Default Rate, as applicable. The balance of any payments shall be
applied to reduce the then unpaid principal amount of this Note.
3. SECURITY. The covenants of the Deed To Secure Debt are incorporated by
reference into this Note. This Note shall evidence, and the Deed To Secure Debt
shall secure, the Aggregate Indebtedness.
4. LATE CHARGE. If any payment of interest, any payment of a monthly installment
or any payment of a required escrow deposit is not paid within 7 days after the
due date (except upon the Maturity Date), Holder shall have the option to charge
Borrower the Late Charge. The Late Charge is for the purpose of defraying the
expenses incurred in connection with handling and processing delinquent payments
and is payable in addition to any other remedy Holder may have. Unpaid Late
Charges shall become part of the Aggregate Indebtedness and shall be added to
any subsequent payments due under the Loan Documents.
5. ACCELERATION UPON DEFAULT. At the option of Holder, if Borrower fails to pay
any sum specified in this Note within 7 days of the due date, or if an Event of
Default occurs, the Aggregate Indebtedness, and all other sums evidenced and/or
secured by the Loan Documents, including without limitation any applicable
prepayment fees (collectively, the "ACCELERATED LOAN AMOUNT") shall become
immediately due and payable.
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6. INTEREST UPON DEFAULT. The Accelerated Loan Amount shall bear interest at the
Default Rate which shall never exceed the maximum rate of interest permitted to
be contracted for under the laws of the State. The Default Rate shall commence
upon the occurrence of an Event of Default and shall continue until all defaults
are cured; provided, however, interest at the Default Rate shall not accrue and
be payable for non-monetary defaults until Borrower has received written notice
of default and has failed to cure such default within thirty (30) days of
receipt of such notice (or such longer period as may be allowed under any Loan
Documents). The Aggregate Indebtedness evidenced by this Note, all accrued and
unpaid interest thereon and all other sums evidenced and/or secured by the Loan
Documents shall also bear interest at the Default Rate following any judgment.
7. LIMITATION ON INTEREST. The agreements made by Borrower with respect to this
Note and the other Loan Documents are expressly limited so that in no event
shall the amount of interest received, charged or contracted for by Holder
exceed the highest lawful amount of interest permissible under the laws
applicable to the Loan. If at any time performance of any provision of this Note
or the other Loan Documents results in the highest lawful rate of interest
permissible under applicable laws being exceeded, then the amount of interest
received, charged or contracted for by Holder shall automatically and without
further action by any party be deemed to have been reduced to the highest lawful
amount of interest then permissible under applicable laws. If Holder shall ever
receive, charge or contract for, as interest, an amount which is unlawful, at
Holder's election, the amount of unlawful interest shall be refunded to Borrower
(if actually paid) or applied to reduce the then unpaid principal amount of this
Note. To the fullest extent permitted by applicable laws, any amounts contracted
for, charged or received under the Loan Documents included for the purpose of
determining whether the Interest Rate would exceed the highest lawful rate shall
be calculated by allocating and spreading such interest to and over the full
stated term of this Note.
8. PREPAYMENT. Borrower shall not have the right to prepay all or any portion of
the Loan amount at any time during the term of this Note except as expressly set
forth below or in the Deed To Secure Debt. This Note shall be closed to
prepayment during the 12 full months following the Advance Date. Commencing on
the 1st day of the thirteenth (13th) month following the Advance Date, the Loan
may be prepaid in whole, but not in part, with the payment of a Prepayment Fee
(as defined below). In addition, commencing on the first day of the 33rd month
following the Advance Date, Borrower may prepay the entire outstanding principal
balance of the Loan, accrued interest and all other sums due and payable under
the Loan Documents without Prepayment Fee. The Borrower must give at least
thirty (30) days prior written notice of a prepayment. If Borrower provides
notice of its intention to prepay, the Accelerated Loan Amount shall become due
and payable on the date specified in the prepayment notice. In addition to the
above limitations upon prepayment, this Note may not be prepaid without the
simultaneous prepayment of the Other Notes in accordance with their terms.
9. DEFAULT; DEFAULT PREPAYMENT FEE; PREPAYMENT FEE.
(a) Any tender of payment by Borrower or any other person or entity of
the Aggregate Indebtedness, other than as expressly provided in the Loan
Documents, shall constitute a prohibited prepayment. If a prepayment of all or
any part of the Aggregate Indebtedness is made (i) following an Event of Default
and an acceleration of the Maturity Date, (ii) following the application of
money to the principal of the Loan after a casualty or a condemnation, or (iii)
in connection with a purchase of the Property at foreclosure or by deed in lieu
of foreclosure or by power of sale or a repayment of the Aggregate Indebtedness
at any time before, during or after, a judicial or non-judicial foreclosure or
sale of the Property, then to compensate Holder for the loss of the investment,
Borrower shall pay an amount equal to the Default Prepayment Fee (as hereinafter
defined); provided however, in the event of a casualty or condemnation, so long
as Borrower makes a good faith effort to obtain an amount equal to the Default
Prepayment Fee due as a result of the casualty or condemnation as part of its
damages from the insurer or condemning authority, the Default Prepayment Fee due
as a result of the casualty or condemnation shall be waived in the event that
such amount is not collected by Borrower.
(b) The "DEFAULT PREPAYMENT FEE" shall be equal to (i) the greater of
(a) the present value of all remaining Partial Monthly Payments of Interest (as
defined below), discounted at the rate which, when compounded monthly, is
equivalent to the Treasury Rate, compounded semi-annually, or (b) one percent
(1%) of the amount of the principal being prepaid, plus (ii) a LIBOR breakage
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fee for a one (1) month LIBOR contract which shall be calculated as if a pricing
contract were in place at the time of such prepayment as reasonably determined
by Holder (whether or not such a pricing contract is actually in place). A
"PARTIAL MONTHLY PAYMENT OF INTEREST" shall be defined as the outstanding
principal balance of the Loan multiplied by 1.60% as to the outstanding
principal balance of Note A and 6% as to the outstanding principal balance of
Note B, divided by 360, multiplied by 365 and divided by 12. The "TREASURY RATE"
shall be the annualized yield on securities issued by the United States Treasury
having a maturity equal to the remaining stated term of the Note, as quoted in
the FEDERAL RESERVE STATISTICAL RELEASE [H. 15 (519)] under the heading "U.S.
Government Securities - Treasury Constant Maturities" for the date on which
prepayment is being made. If this rate is not available as of the date of
prepayment, the Treasury Rate shall be determined by interpolating between the
yield on securities of the next longer and next shorter maturity. If the
Treasury Rate is no longer published, Holder shall select a comparable rate.
Holder will, upon request, provide an estimate of the amount of the Prepayment
Fee two weeks before the date of the scheduled prepayment. The number of
"remaining" Partial Monthly Payments of Interest to be used in the calculation
of the Default Prepayment Fee or Prepayment Fee, as the case may be, shall be
equal to the number of remaining monthly installments due hereunder.
(c) The "PREPAYMENT FEE" shall be equal to the sum of (x) five (5)
basis points times the number of calendar quarters, including the current
calendar quarter, remaining in the Loan term times the amount of principal being
prepaid, plus (y) a LIBOR breakage fee for a one (1) month LIBOR contract which
shall be calculated as if a pricing contract were in place at the time of such
prepayment as reasonably determined by Holder (whether or not such a pricing
contract is actually in place).
10. WAIVER OF RIGHT TO PREPAY NOTE WITHOUT PREPAYMENT FEE. Borrower acknowledges
that Holder has relied upon the anticipated investment return under this Note in
entering into transactions with, and in making commitments to, third parties and
that the tender of any prohibited prepayment, shall, to the extent permitted by
law, include the Prepayment Fee or Default Prepayment Fee, as the case may be.
Borrower agrees that the Prepayment Fee or Default Prepayment Fee, as the case
may be, represents the reasonable estimate of Holder and Borrower of a fair
average compensation for the loss that may be sustained by Holder as a result of
a prohibited prepayment of this Note and it shall be paid without prejudice to
the right of Holder to collect any other amounts provided to be paid under the
Loan Documents.
BORROWER EXPRESSLY (A) WAIVES ANY RIGHTS IT MAY HAVE UNDER APPLICABLE STATE LAW
TO PREPAY THIS NOTE, IN WHOLE OR IN PART, WITHOUT FEE OR PENALTY, UPON
ACCELERATION OF THE MATURITY DATE OF THIS NOTE, AND (B) AGREES THAT IF, FOR ANY
REASON, A PREPAYMENT OF THIS NOTE IS MADE, UPON OR FOLLOWING ANY ACCELERATION OF
THE MATURITY DATE OF THIS NOTE BY HOLDER ON ACCOUNT OF ANY DEFAULT BY BORROWER
UNDER ANY LOAN DOCUMENT, INCLUDING BUT NOT LIMITED TO ANY TRANSFER, FURTHER
ENCUMBRANCE OR DISPOSITION WHICH IS PROHIBITED OR RESTRICTED BY THE DEED TO
SECURE DEBT, THEN BORROWER SHALL BE OBLIGATED TO PAY CONCURRENTLY THE DEFAULT
PREPAYMENT FEE SPECIFIED IN SECTION 9. BY EXECUTING THIS NOTE, BORROWER AGREES
THAT HOLDER'S AGREEMENT TO MAKE THE LOAN AT THE INTEREST RATE AND FOR THE TERM
SET FORTH IN THIS NOTE CONSTITUTES ADEQUATE CONSIDERATION FOR THIS WAIVER AND
AGREEMENT.
11. LIABILITY OF BORROWER. Upon the occurrence of an Event of Default, except as
provided in this Section 11 and Section 11 of the Other Notes, Holder will look
solely to the Property and the security under the Loan Documents for the
repayment of this Note and will not enforce a deficiency judgment against
Borrower. However, nothing contained in this section shall limit the rights of
Holder to proceed against Borrower and/or the Liable Parties (i) to enforce any
leases entered into by Borrower or its affiliates as tenant, guarantees, or
other agreements entered into by Borrower in a capacity other than as borrower
(such as, for example, but without limitation, master leases, guaranty
agreements, or other similar agreements) or any policies of insurance under
which Holder is the insurer; (ii) to recover damages for fraud, material
misrepresentation, material breach of warranty or waste by any of the Liable
Parties or Borrower; (iii) to recover any Condemnation Proceeds or Insurance
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Proceeds or other similar funds which have been misapplied by Borrower or which,
under the terms of the Loan Documents, should have been paid to Holder pursuant
to the Loan Documents; (iv) to recover any tenant security deposits, tenant
letter of credit or other deposits or fees paid to Borrower that are part of the
collateral for the Loan or prepaid rents for a period of more than 30 days which
have not been delivered to Holder or otherwise disbursed pursuant to the subject
Lease; (v) to recover Rents and Profits received by Borrower after the first day
of the month in which an Event of Default occurs and prior to the date that
Holder acquires title to the Property, which have not been applied to the Loan
or in accordance with the Loan Documents to operating and maintenance expenses
of the Property; (vi) to recover damages, costs and expenses arising from, or in
connection with the provisions of the Deed To Secure Debt pertaining to
hazardous materials or the Indemnity Agreement; (vii) to recover all expenses
incurred by Holder as a result of Borrower's contest of the enforcement of the
Loan Documents beyond Borrower's contention that no Event of Default has
occurred; (viii) to recover damages arising from Borrower's failure to comply
with Section 8.01 of the Deed To Secure Debt pertaining to ERISA; (ix) to
recover damages, costs and expenses arising from, or in connection with,
Grantor's failure to pay any Impositions or Premiums to the extent not deposited
with Lender; (x) for all obligations of Borrower under Section 21 of this Note
captioned "Interest Rate Protection"; and/or (xi) for any disbursements made by
Holder to Borrower for Tenant Improvements, Leasing Commissions or other Lease
Related Costs pursuant to the Leasing Reserve Holdback Agreement prior to the
applicable Tenant taking actual occupancy and paying rent under such Tenant's
Lease; provided that neither Maker nor the Liable Parties shall have any
liability for such amounts under this clause (xi) after any such Tenant shall
have taken occupancy and commenced paying rent.
The limitation of liability set forth in this Section 11 shall not apply and the
Loan shall be fully recourse in the event that prior to the repayment of the
Aggregate Indebtedness, (i) there is a Transfer or Secondary Financing except as
permitted in the Loan Documents or as otherwise Approved by Holder or (ii)
Borrower commences a voluntary bankruptcy or insolvency proceeding or (iii)
Borrower or any member or affiliate of Borrower acquiesces in, consents to, or
joins in an involuntary bankruptcy or insolvency proceeding commenced against
Borrower. In addition, this agreement shall not waive any rights which Holder
would have under any provisions of the U.S. Bankruptcy Code to file a claim for
the full amount of the Aggregate Indebtedness or to require that the Property
shall continue to secure all of the Aggregate Indebtedness.
12. WAIVER BY BORROWER. Borrower and others who may become liable for the
payment of all or any part of this Note, and each of them, waive diligence,
demand, presentment for payment, notice of nonpayment, protest, notice of
dishonor and notice of protest, notice of intent to accelerate and notice of
acceleration and specifically consent to and waive notice of any amendments,
modifications, renewals or extensions of this Note, including the granting of
extension of time for payment, whether made to or in favor of Borrower or any
other person or persons.
13. EXERCISE OF RIGHTS. No single or partial exercise by Holder, or delay or
omission in the exercise by Holder, of any right or remedy under the Loan
Documents shall waive or limit the exercise of any such right or remedy. Holder
shall at all times have the right to proceed against any portion of or interest
in the Property in the manner that Holder may deem appropriate, without waiving
any other rights or remedies. The release of any party under this Note shall not
operate to release any other party which is liable under this Note and/or under
the other Loan Documents or under the Indemnity Agreement.
14. FEES AND EXPENSES. If Borrower defaults under this Note, Holder shall be
entitled to recover, in addition to the sums stated above, the costs and
expenses of enforcement and collection, including reasonable attorney's fees
actually incurred. Notwithstanding anything to the contrary contained herein or
in any other Loan Document, Guaranty or indemnity agreement executed with
respect to or in connection with the Loan, it is understood and agreed that the
provisions of O.C.G.A. ss. 13-1-11 shall NOT apply to attorneys' fees collected
on this Loan or any recovery of attorneys' fees with respect hereto or thereto,
and following any Event of Default, Holder's recovery hereunder or thereunder
with respect to attorney's fees shall be limited to reasonable attorney's fees
actually incurred. To the extent Borrower is personally liable for any amounts
under Section 11 of this Note, Borrower shall also be personally liable for any
reasonable attorney's fees actually incurred in connection with such liability.
15. NO AMENDMENTS. This Note may not be modified or amended except in a writing
executed by Borrower and Holder. No waivers shall be effective unless they are
set forth in a writing signed by the party which is waiving a right. This Note
and the other Loan Documents are the final expression of the lending
relationship between Borrower and Holder.
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16. GOVERNING LAW. This Note is to be construed and enforced in accordance with
the laws of Georgia.
17. CONSTRUCTION. The words "Borrower" and "Holder" shall be deemed to include
their respective heirs, representatives, successors and assigns, and shall
denote the singular and/or plural, and the masculine and/or feminine, and
natural and/or artificial persons, as appropriate. The provisions of this Note
shall remain in full force and effect notwithstanding any changes in the
shareholders, partners or members of Borrower. If more than one party is
Borrower, the obligations of each party shall be joint and several. The captions
in this Note are inserted only for convenience of reference and do not expand,
limit or define the scope or intent of any section of this Note.
18. NOTICES. All notices, demands, requests and consents permitted or required
under this Note shall be given in the manner prescribed in the Deed To Secure
Debt.
19. TIME OF THE ESSENCE. Time shall be of the essence with respect to all of
Borrower's obligations under this Note.
20. SEVERABILITY. If any provision of this Note should be held unenforceable or
void, then that provision shall be deemed separable from the remaining
provisions and shall not affect the validity of this Note, except that if that
provision relates to the payment of any monetary sum, then Holder may, at its
option, declare the Aggregate Indebtedness (together with the Default Prepayment
Fee) immediately due and payable.
21. INTEREST RATE PROTECTION. At or prior to the date hereof, Borrower shall
enter into an Interest Rate Cap Agreement (the "Interest Rate Cap Agreement")
which shall protect against an increase in interest rates which would cause the
annual Interest Rate (i) in year one of the Loan to exceed 4.89% per annum on
Note A and to exceed 9.29% per annum on Note B; (ii) in year two of the Loan to
exceed 6.5% per annum on Note A and to exceed 10.9% per annum on Note B; and
(iii) in year three of the Loan, to exceed the interest rate attributable to a
debt service coverage ratio of 1.25 times the projected year three net operating
income as determined by Lender in its sole discretion at least thirty (30) days
prior to the commencement of year three. The Interest Rate Cap Agreement (i)
shall be in form acceptable to Holder, (ii) shall be with a counterparty
acceptable to Holder and which counterparty shall have a credit rating of A or
better by Moody's Investors Service, Inc., and A or better by Standard and
Poor's Rating Group, (iii) shall direct such acceptable counterparty to deposit
payments made under the Interest Rate Cap Agreement directly into an account
designated by Holder so long as any portion of the Loan remains outstanding,
provided however, for purposes of this requirement, the Loan shall be deemed to
be remaining outstanding if the Property is transferred to Holder (or its
nominee or designee) by judicial foreclosure or non-judicial foreclosure or by
deed-in-lieu thereof, (iv) shall be for an initial term of one year and must be
renewed annually thereafter for the term of the Loan, and (v) shall have an
initial notional amount equal to the principal balance of the Loan. Borrower
shall collaterally assign to Holder all of its right, title and interest to
receive any and all payments under the Interest Rate Cap Agreement, and shall
deliver to Holder an executed counterpart of such Interest Rate Cap Agreement
which shall by its terms authorize the assignment to Holder and require that
payments thereunder be deposited directly into the account as shall be
designated by Holder. Borrower shall comply with all of its obligations under
the Interest Rate Cap Agreement. All amounts paid by the counterparty under the
Interest Rate Cap Agreement to Borrower or Holder shall be deposited immediately
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into such account as shall be designated by Holder. The Interest Rate Cap
Agreement and the aforesaid account designated by Holder shall be deemed to be
part of the Property for purposes of Section 11 of Note A, Section 11 of Note B,
and Section 9 of the Deed. Borrower shall take all actions reasonably required
by Holder to enforce Holder's rights under the Interest Rate Cap Agreement in
the event of a default by the counterparty and shall not waive, amend or
otherwise modify any of its rights thereunder. In the event of a downgrade,
withdrawal or qualification of the rating of the counterparty by Moody's
Investors Service, Inc., or by Standard & Poor's Ratings Group, at Holder's
option, Borrower shall replace the Interest Rate Cap Agreement with a
replacement Interest Rate Cap Agreement with a counterparty acceptable to Holder
not later than ten (10) business days following receipt of notice from Holder of
such downgrade, withdrawal or qualification. In the event that Borrower fails to
purchase, deliver and/or maintain the Interest Rate Cap Agreement or any renewal
or replacement thereof as required hereby, Holder may (in addition to exercising
any of its other rights and remedies) purchase such Interest Rate Cap Agreement
or any renewal or replacement thereof and the costs incurred by Holder in
purchasing and maintaining the same shall be paid by Borrower with interest
thereon at the Default Rate from the date such cost was incurred by Holder until
such cost is paid by Borrower to Holder. In connection with each Interest Rate
Cap Agreement required hereunder, Borrower shall obtain and deliver to Holder at
the Closing an opinion of counsel for the counterparty (upon which Holder and
its successors and assigns may rely) in form, scope and substance acceptable to
Holder regarding the authorization of the counterparty, the legality, validity,
and binding effect of the Interest Rate Cap Agreement, and such other matters as
Holder shall reasonably require. The obligation to purchase and maintain the
Interest Rate Cap Agreement and any renewals or replacement thereof shall be
fully recourse to Borrower and the Liable Parties.
22. LEASING RESERVE HOLDBACK. Certain proceeds of this Note have been withheld
from disbursement and will be disbursed as future advances subject to and in
accordance with that certain Leasing Reserve Holdback Agreement of even date
herewith among Borrower and Holder (as amended, from time to time, the "Leasing
Reserve Holdback Agreement").
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IN WITNESS WHEREOF, Borrower has executed this Note under seal as of the
Execution Date.
ATLANTIC CENTER PLAZA, LLC,
a Georgia limited liability company
By: P&L ACP, LLC,
a Georgia limited liability company, its Manager
By: /s/ Harry E. Morgan
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Harry E. Morgan, Manager
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EXHIBIT A
Monthly Principal Payments
PAYMENT # DATE PRINCIPAL PAYMENT
1 1/1/2004 $0.00
2 2/1/2004 $9,472.39
3 3/1/2004 $10,876.08
4 4/1/2004 $9,523.38
5 5/1/2004 $10,005.58
6 6/1/2004 $9,572.32
7 7/1/2004 $10,053.06
8 8/1/2004 $9,621.50
9 9/1/2004 $9,645.61
10 10/1/2004 $10,124.16
11 11/1/2004 $9,695.15
12 12/1/2004 $10,172.22
13 1/1/2005 $9,744.93
14 2/1/2005 $9,769.35
15 3/1/2005 $11,144.97
16 4/1/2005 $9,821.76
17 5/1/2005 $10,295.06
18 6/1/2005 $9,872.17
19 7/1/2005 $10,343.96
20 8/1/2005 $9,922.83
21 9/1/2005 $9,947.69
22 10/1/2005 $10,417.23
23 11/1/2005 $9,998.72
24 12/1/2005 $10,466.74
25 1/1/2006 $10,050.00
26 2/1/2006 $10,075.19
27 3/1/2006 $11,421.91
28 4/1/2006 $10,129.06
29 5/1/2006 $10,593.19
30 6/1/2006 $10,180.98
31 7/1/2006 $10,643.56
32 8/1/2006 $10,233.17
33 9/1/2006 $10,258.81
34 10/1/2006 $10,719.07
35 11/1/2006 $10,311.37
10